§ Lords amendment: No. 18, in page 16, line 40, after ("will") insert ("or might")
§ Mr. Ian McCartneyI beg to move, That this House does agree with the Lords in the said amendment.
§ Mr. McCartneyWhen I started work on this Bill, I was 6 ft 6 in tall. I am told that I should just rest a bit on this Box.
This is an important group of amendments, the purpose of which is to ensure that there is no loophole in protection against dismissal or detrimental action for workers and employees who would be entitled to the full rate of the national minimum wage or who were about to qualify for a higher rate, even when no rate has yet been set in the months following commencement of the clauses.
I am sure that the House will agree on the principle behind the affected clauses. They will protect workers and employees against dismissal or detrimental action on the grounds that they qualify or will qualify for the national minimum wage or for a particular—higher—rate of the national minimum wage. We want to ensure that workers have that protection during the interim—between commencement of the clauses, after Royal Assent and subject to Parliament's will, and the setting of the national minimum wage in the ensuing regulations.
273 By adding the word "might" in each case, the amendments are designed to remove any doubt about whether workers are protected in that manner during that period. I trust that the House can accept these linked amendments.
§ Mr. BoswellI think that we have to stop for a moment on this group of amendments. There is nothing wrong with the Minister's intentions, and I do not wish to suggest that we want people to take action by way of detriment against employees who in future
might qualify…for the minimum wage".I have used the phrase that the Minister has included in his amendment, but, in so doing, I express some doubt about it.Circumstances defined in the relevant clause—clause 23(1)(c)—include those in which
the worker qualifies, or will qualify, for the national minimum wage or for a particular rate".That should be a fairly clear evidential test. Is there an employment when the wage is in force? Is the appropriate rate for the national minimum wage being paid? Is there an employment when the national minimum wage comes in on the appointed day after the conclusion of regulations? If so, is the person being sacked ahead of the introduction as a way of getting them out of the way? I understand those cases. However, insertion of the word "might" creates the types of uncertainty that the newspapers are so good at exploiting.There could be a story saying, for example, who "might" today become Government Chief Whip. That is the type of story that the newspapers write. The Government "may be" having second thoughts about inclusion of the armed forces in the National Minimum Wage Bill. That story was spun around until there were second thoughts.
The word "might" is imprecise. I might have no employment relationship. As an hon. Member, I am self-employed, at least for some purposes, but I might qualify for the national minimum wage. I do not know whether I do. To use "might" is to open the doors to some uncertainty.
Although I have no particular penchant for drafting, I should have preferred as the test "either that the worker qualifies, or, provided that his current employment contract is maintained, he will qualify"—not "he might qualify". I am not sure that, in the interests of trying to be fair, the Minister has chosen the right wording. I wonder if he might reflect on the point.
§ Mr. McCartneyI have been reflecting on what the hon. Gentleman has said and I disagree with him. I know that that was a pretty quick reflection, but we debated at great length in Committee the importance of the principle of protecting people from being detrimentally affected during employment when they are entitled to the minimum wage, and of preventing an employer from sacking an employee who is coming up to the qualifying age for the minimum wage.
In the interim between Royal Assent and the application of the minimum wage, an employer should not be able to dismiss an employee or affect him or her 274 detrimentally. The word "might" is not imprecise. It relates to the period leading up to when people might qualify for the minimum wage and should be protected from an employer seeking to sack them to avoid paying the minimum wage. That would not be acceptable. We are being precise.
§ Mr. HammondMy hon. Friend the Member for Daventry (Mr. Boswell) and I agree that in relation to the transitional period the use of the word "might" could be seen as precise. My hon. Friend was pointing out that, once the transitional period is over, the word becomes rather imprecise. Would it not have been better to deal with the problem by putting a specific transitional provision in the Bill?
§ Mr. McCartneyWe could go round the houses on that. I think that we shall just have to disagree. I have made our reasons clear. The provision is for the transitional period leading up to the full implementation of the minimum wage. It will remove the loophole that would allow someone to be sacked on the basis that he might qualify for the minimum wage.
§ Lords amendment agreed to.
§
Lords amendment: No. 19, in page 17, line 2, after ("by") insert
(", or by virtue of, any provision of')
§ Mr. Ian McCartneyI beg to move, That this House does agree with the Lords in the said amendment.
Mr. Deputy SpeakerWith this, it will be convenient to discuss Lords amendment No. 20, Lords amendment No. 25, Government amendment (a) thereto and Lords amendments Nos. 28 and 34.
§ Mr. McCartneyAmendments Nos. 19 and 20 are tidying up amendments aimed at ensuring consistency and correctness of drafting. Clause 23 protects workers against a detrimental action for asserting their right under the Bill. Amendment No. 19 adds the words "by virtue of in subsection (3)(a) to ensure that the rights to which the protection provided by the clause applies include rights conferred by other legislation that applies for minimum wage purposes by virtue of the Bill—for example, the legislation covering the agricultural wages regimes or regulations made under the Bill—as well as rights conferred directly by the Bill.
I hope that hon. Members will not feel short-changed by my shortened version of the reasons behind the amendments and will accept them as minor technical amendments.
§ Mr. BoswellI rise not in retaliation for the Minister's foreshortening of his explanation, but to seek an explanation on amendment No. 25. I fear that 1 am ignorant of the nicer points of the arrangements for Orders in Council and drafting. Clause 42(3) provides that
An Order in Council under this section—(a) may make different provision for different cases".The Minister has vehemently resisted the thoughtful provision inserted in another place for some general powers of exclusion, which we debated earlier. We are now dealing with a more precise shrinking of his area of 275 discretion by not allowing an Order in Council—in the context of offshore employment—to make different provision for different cases.The only conclusion that I can produce by way of explanation is that Orders in Council probably cannot make provision for different cases—or, to put it another way, if the cases differ, differing Orders in Council need to be made for them. As I am puzzled on that score, it would be helpful if the Minister would clarify what is going on.
§ Mr. McCartneyI shall assist the hon. Gentleman. He is talking about the effect of clause 42(3), which provides that
An Order in Council under this section"—applying to offshore workers(a) may make different provision for different cases".Counsel has pointed out that that is unnecessary because clause 51(1) provides thatany power conferred by this Act to make an Order in Council … includes power … to make different provision for different cases".We are therefore deleting paragraph (a) of clause 42(3), thus removing a duplication. I apologise for including such a duplication in the first place, but now we are taking it away. Better late than never.
§ Mr. HammondCan the Minister turn his attention to Lords amendment No. 28 and explain why it is proposed to leave out the words "in writing"? It seems to me normal that a Secretary of State would give notice in writing, and I cannot envisage a situation in which he or she would want to give notice other than in writing.
§ Mr. McCartneyrose—
Mr. Deputy SpeakerOrder. Before the Minister replies, may I suggest that hon. Gentlemen should allow the Minister to finish a reply before rising to their feet. It is tidier and gives a better flow to what is said.
§ Mr. McCartneyI think that the hon. Gentleman has raised an issue not covered by the amendments. However, in the interests of people who are following the Bill, I shall read what he has said in Hansard, reflect on it and write to the hon. Gentleman.
§ Lords amendment agreed to.
§ Lords amendments Nos. 20 to 22 agreed to.
§
Lords amendment: No. 23, in page 20, line 30, at end insert—
("(6) The Department of Economic Development may by order repeal subsection (5) above and this subsection.")
§ Mr. Ian McCartneyI beg to move, That this House does agree with the Lords in the said amendment.
§ Mr. McCartneyI hope that we can deal with the group quickly. The purpose of these highly technical amendments is to reflect changes in the treatment of dismissal procedure agreements made by the Employment 276 Rights (Dispute Resolution) Act 1998 as they affect the protection of employees in Northern Ireland against unfair dismissal for asserting their rights under the Bill.
Lords amendment No. 23 provides a power, in a new subsection (6) of clause 26, for the Department of Economic Development in Northern Ireland to make an order to repeal subsection (5), as well as the new subsection (6) itself. That will ensure that employees in Northern Ireland are protected against unfair dismissal for asserting their rights under the Bill.
§ Mr. BoswellWhy does giving a Government Department power to repeal a piece of legislation help to safeguard employment rights? Given that the legislation in question is supposed to protect employment rights, a power to take them away seems a little odd. I am sure that there is a legitimate explanation, but I should like to hear it.
§ Mr. McCartneyAll that we are doing is keeping consistency throughout the Bill as it relates to other parts of the United Kingdom. The hon. Gentleman knows about the special nature of Northern Ireland, and the amendment takes account of that—no more, no less.
§ Lords amendment agreed to.